Roberts v. McIntire

• Decision Date: 24 March 1892
• Citation: 24 A. 867,84 Me. 362
• Parties: ROBERTS v. MCINTIRE et al.
• Court: Maine Supreme Court

24 A. 867

84 Me. 362

ROBERTS

v. MCINTIRE et al.

Supreme Judicial Court of Maine.

March 24, 1892.

(Official.)

Writ of entry by Jennie B. Roberts against Frederick C. McIntire and others. On agreed statement. Judgment for plaintiff.

Heath & Tuell, for plaintiff.

George E. Hughes, for defendants.

WHITEHOUSE, J. This is a writ of entry. The plaintiff derives title under a deed from Mary D. McIntire, wife or William H. McIntire, to Elbridge Randall, dated November 3, 1879. The defendants are heirs of Mrs. McIntire, and contend that this deed was inoperative, because the husband did not join in it.

Under our statutes, real estate directly or indirectly conveyed to a married woman by her husband, or paid for by him, or given or devised to her by his relatives, "cannot be conveyed by her without the joinder of her husband." Rev. St. c. 61, § 1.

The property in question was directly conveyed to Mrs. McIntire by her husband, by deed of June 10, 1879. It could not be conveyed by her without his Joinder.

In the deed in question from Mrs. McIntire to Randall the husband did not join with the wife as grantor, but he signed and sealed the instrument and acknowledged it to be his "free act and deed." His name first appears in the testimonium clause, as follows: "And William H. McIntire, husband of the said Mary D. McIntire, in testimony of his relinquishment of his right of dower in the above-described premises, have hereunto set our hands," etc. If this constitutes a "joinder of the husband" under our statute, it is conceded that the plaintiff is entitled to recover; otherwise judgment must be entered for the defendants. This is the sole contention between the parties.

The precise question has never been directly determined in this state, but the correct solution of it is only a corollary from the principles established by our decisions respecting the true intent and meaning of this statute.

In Massachusetts it was the express requirement of the statute of 1857 upon this subject that the wife's deed should have the "assent in writing of her husband." Gen. St. Mass. 1860, c. 108, § 3. In several other states the husband's "assent" or "written assent" or "consent" is made a prerequisite to the validity of the deed. See Devi. Deeds, §§ 100-107; Kelley, Cont. Mar. Worn. c. 5, § 0; and Id. c. 9 et seq.

In Perkins v. Morse, 78 Me. 17, 2 Atl. Rep. 130, convincing reasons were given why our statute should receive a liberal interpretation for the sake of upholding honest conveyances; and the construction placed upon it in Bray v. Clapp, 80 Me. 277, 13 Atl. Rep. 900, renders it precisely the same in effect as the Massachusetts statute of 1857. In the latter case it was declared by our court that "no more than written assent was really intended by our own statute, the difference in phraseology being accidental rather than essential; "and it was accordingly held to be sufficient for the husband to sign the deed "in token of his assent to the conveyance."

In the case at bar the deed recites that "in witness whereof" the husband signed the deed "in token of his relinquishment of his right of dower." But he had no right of dower in real estate legally conveyed by her in her lifetime. By Rev. St. c. 103, § 14, "the husband of a deceased wife, whose estate is solvent, shall have the use for life of one third of her real estate, to be recovered and assigned in the manner and with the rights of dower;" but this means the real estate of which she died seised. Rev. St. c. 65, § 6. At the decease of the wife the husband has no right whatever in property legally conveyed by her in her lifetime. As stated in Bray v. Clapp, supra, "the statute exacts the joinder of her husband, not as a grantor, because he has nothing to grant, but as an assenter, merely, for he has only the power to withhold or give his assent." What effect, then, are we authorized to give to the husband's signature to this deed, considered in its relation to the in testimonium clause and the acknowledgment before the magistrate? Can it be legitimately construed as an "assent in writing" to the wife's conveyance? We think it can and should.

There are certain elementary principles applicable to tbe construction of written contracts which are matters of such common knowledge and universal acceptance as to render the citation of authorities a profitless task. There are pregnant legal maxims which are the deductions of reason and the conclusions of common sense, approved by the wisdom of ages. But their practical application must, in some instances, be qualified or restricted by technical rules which ascribe definite meanings to particular expressions, in order to secure uniformity and to enable parties to understand the effect of the language employed in contracts made or accepted by them. All agree, however, that it is the constant desire of the law to uphold a contract rather than destroy it; to effectuate the intention of the parties, and not to...